When Liberals Demanded Religious Exemptions

Eugene Volokh, one of the top First Amendment scholars in the country, has an essay detailing the long history of laws and court rulings giving religious exemptions from laws that apply to everyone else, and it’s quite interesting. Many outlets have noted that Justice Scalia rejected the idea that the Free Exercise Clause demanded such exemptions, but in fact the sides have completely flipped positions on the issue.

Volokh details two types of exemptions, those based on a statute giving a specific exemption from a specific law (for instance, in the early days of the country some states specifically exempted Jews from laws that forbid uncles and nieces marrying, for some reason), and the idea, found mostly in court rulings, that the constitution requires religious exemptions in general (within limits, of course). The latter notion dates back to a Supreme Court ruling 52 years ago:

But starting in the 1940s, when the Court began to forcefully apply the Free Speech Clause to protect free speech, some opinions began to suggest that the Free Exercise Clause might likewise protect at least some religiously motivated conduct (a view that had been rejected by the Court in the Mormon polygamy case, Reynolds v. United States (1879).

This took a while to gain traction, but in the early 1960s, the arch-liberal Justice Brennan began to forcefully advocate this position, and in 1963 he succeeded, in Sherbert v. Verner. The Court was then all liberals or moderates by today’s standards, but the dissenters were two of the more conservative members, Justice Harlan and Justice White (who, though, a Kennedy appointee, was in many ways less liberal than most of the other Justices).

As a result, the Court adopted what later came to be called the Sherbert/Yoder test: Religious objectors are presumptively constitutionally entitled to exemptions from federal, state, or local laws that substantially burden their religious practice — e.g., by requiring them to do something they view as religiously forbidden, by forbidding them from doing something they view as religiously required, or by imposing a financial penalty on religiously motivated action or inaction. That presumption can be rebutted (and it often was), but only when denying an exemption was seen as necessary to serve a compelling government interest…

Through the 1960s, 1970s, and 1980s, this rule that religious exemptions are presumptively constitutionally mandated was broadly endorsed by liberal Justices (and many moderates), and was embraced by liberal groups, including the ACLU. Its only foes on the Court were the arch-conservative Justice Rehnquist, and Justice Stevens, who at the time was seen as a moderate.

Fast forward to 1990, when the court rejected that reasoning in Employment Division v Smith, led by the conservative members of the court in a ruling written by Justice Scalia and the three most liberal members of the court in dissent.

Then came Employment Division v. Smith (1990), which held that the Free Exercise Clause generally did not require religious exemptions from generally applicable laws (though it left room for many statute-by-statute exemptions). That rejection of religious exemptions was famously led by Justice Scalia, joined by conservative Justices Rehnquist and Kennedy, moderate Justice White, and Justice Stevens, who I think was still viewed as moderate at the time, though he had begun to be viewed as more liberal. (Whether this was because he had changed or because the Court has changed is a matter of debate.)

The dissenters were moderate conservative Justice O’Connor, liberal Justices Brennan and Marshall, and Justice Blackmun, who by then was seen as a liberal. The ACLU weighed in on the dissenters’ side. Religious exemptions were thus still seen as a predominantly liberal cause.

That decision led Congress to pass the Religious Freedom Restoration Act in 1993, effectively reversing that decision by providing a statutory right to religious exemptions rather than a constitutional one. Ted Kennedy was one of the two co-authors of that bill (Orrin Hatch was the other) and it passed the Senate by a staggering 97-3 vote and unanimously in the House. Support for religious exemptions was clearly bipartisan. And two decades later, it’s the conservative members of the court who argue for the broadest possible interpretation of RFRA, while the liberals want it interpreted more narrowly.

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  • Crimson Clupeidae

    Liberals demanded it, and conservatives got exactly what they wanted.

    It seems to work that way all too often.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    As a result, the Court adopted what later came to be called the Sherbert/Yoder test…

    You’re in a desert walking along in the sand when all of the sudden you look down, and you see a tortoise, it’s crawling toward you. You reach down, you flip the tortoise over on its back. The tortoise lays on its back, its belly baking in the hot sun, beating its legs trying to turn itself over, but it can’t, not without your help. But you’re not helping. Why is that?

  • garnetstar

    That’s the thing about religion, isn’t it? It can mean anything to anyone and therefore has no meaning at all.

    So, throw it out. No religious reasons for anything, the end. If you don’t like that, move to the theocracy of your choice.

  • Alverant

    Well what’s worked recently was to have non-christians demand the same rights as christians. Then conservatives have twisted themselves in knots trying to figure out a way so they’re the only ones who get special rights.

  • Michael Heath

    I think we’d be better off if the constitutional experts first distinguished the controversy on whether it’s constitutional to infringe upon a right within a certain context from two perspectives rather than [lazily and sloppily] referring to all constitutional applications of power that infringes upon a right as a ‘compelling government interest’.

    I think this sort of non sequitur rhetoric puts the cart ahead of the horse and leads to lot of people misunderstanding how the courts frame a controversy and the logic they use to get to their result. Therefore I see two perspectives I think should be first discussed when the courts recognize a right is protected, but still consider whether it’s constitutional for the government to allow itself or others to infringe upon that right.

    1) Is the court seeking to discover whether the government has the expressly delegated authority to exercise power in a way that infringes upon an individual’s right?

    2) Is the court seeking to understand whether the exercise of a plaintiff’s right infringes upon another’s right where the application of government power being challenged is constitutional? This is where ‘compelling government interest is rhetorically framed as a non sequitur and in some cases, arguably a circular argument.

    On 2, most people can’t get from A to Z on why this constitutional application of power in order to meet a compelling government interest is in fact constitutional. Usually it’s to protect the superior rights of others – where then-retired Justice Souter wrote a good essay on the dilemma of confronting these controversies..

    Such arguments often come off as circular logic. E.g., Your numerated right doesn’t have to be protected in this context because the government has a’ compelling interest’. ‘Compelling interest is in no way a valid end point for infringing upon a right, there has to be an independent and constitutional reason for such an interest to be exercised.

    Far better would be to express, Your numerated right doesn’t have to be protected in this context because your exercise of it infringes upon the rights of others. The court recognizes that the laws infringing on your rights protect these others rights, so the court acknowledges there’s a compelling government interest because the denial of your right leads to less harm than the infringement on others’ competing rights. Where if the court found the opposite, that the competing rights of others caused little harm to them but a lot to the plaintiff, then the courts sometimes do strike down the law in spite of a ‘compelling government interest’. Which is why we should never reflexively end debate merely because we discovered a ‘compelling government interest’.

    Asking these questions first, I doubt we’re seeing a trend where conservatives have flip-flopped.

    In regards to perspective # 1, conservatives are going to defend the individual rights of say, a parson even though the government clearly has the power to tax parsonages. That fits well into their seeking lower taxes for their tribe at the expense of all others.

    Re # 2: Conservatives are going to tend to defend the individual rights of a conservative Christian in spite of how that exercise harms the rights of others. The Hobby Lobby case defending the rights of business owners to deny easy access to contraception coverage to their employees being a good example of their getting a double benefit. In that protecting a patriarchal culture while also harming females – even though the females are frequently members of their in-group given the entities looking to harm women by restricting access to contraception are typically run by conservative Christians; e.g., Hobby Lobby and the Catholic Church.

  • jesse

    I do think there’s a difference in approach, though, between those of us on the left end of the spectrum and those on the right.

    For most progressive people, myself included I imagine, the issue is whether the interests of the state outweigh those of an individual religious practice, and what the least restrictive (to religious practice) way to go about it is. On top of that, there’s a recognition that many “neutral” laws actually end up as discriminatory, because you have to think carefully about what your norms are and how it impacts vulnerable people.

    So, for example, a law banning headscarves in public places might not be phrased as a religious restriction but it effectively compels Muslims and any Orthodox Jewish woman who doesn’t own a wig to adopt the practices of Christianity against their will. Since there’s no compelling state interest in doing that, such a law wouldn’t (from this liberal’s perspective) pass muster.

    On the other hand a law that prohibited human sacrifice is obviously OK because there’s a compelling interest in folks not committing murder.

    Anti-discrimination laws are a bit different because in that case you are operating in the public sphere — if I run a business I am using public roads (that’s how people get there) and getting electricity from the grid, all that stuff. So no, you can’t not hire people because they are X. You have every right to not let X into your house, but that’s your house. Nobody needs to go into your house. (Well, the fire department does if there’s a fire, but you get the idea).

    The point here is to recognize that as a society, we operate together. So you have to find a way to make that work without privileging one group over the other. We also don’t have all those perfect conditions that libertarians talk about, and for any society to work you have to give everyone a stake in it.

    Conservatives, it seems to me, are more often worried about the loss of privilege. They get upset when they can’t discriminate, or when the formerly privileged “normal” isn’t anymore. There’s this idea that we all live in the same city, for example, but you can’t require people to treat each other as equals and since you don’t, theoretically, have to patronize this or that store then if they don’t want to let X people in that’s OK, you could go somewhere else.

    The problem is that it makes a lot of assumptions about the relative burden on some groups of people. If I need a job and I am Jewish, and nobody in my city wants to hire Jews, I might not be able to move to another city. And what if 90% of the populace thinks it’s ok to deny Jews jobs? Or that it i a religious requirement to only sell houses to Christians?

    In fact I’d argue that most of the cases brought by conservatives have been precisely that — how to preserve certain privileges.

    This is why I think the trope that liberals and conservatives have switched sides is not quite descriptive. The approaches to religious freedom are rather different between the two. Doing one’s best to exclude and doing one’s best to include are two very different thing and two very different goals. The policy implications of the religious exemptions people ask for are usually rather different.

    After all just because a Democrat might vote for a candidate that a Republican likes, or a Republican for the reverse, that doesn’t mean they switched sides.

  • hoku

    Generally speaking, Liberals want exceptions where the only one impacted is the person getting the exception and conservatives want exceptions that allow them to impact others. For example, the right to grow a short beard in prison only really impacts the person with the beard, while the right to not serve gay people impacts the wider population.

  • http://www.thelosersleague.com theschwa

    “But you’re not helping. Why is that?”

    Because, Modus, I am a Replicant programmed by Obama to torture helpless tortoises so that I can perfect my technique before turning it on True Americans.

  • Crimson Clupeidae

    Modus, you wanna know about my mother?

    Let me tell you about my mother….

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    It’s nice that some people get what I was thinking. I certainly don’t.

  • otrame

    Ah, Chen. If only you could see what I have seen with your eyes.

  • skinnercitycyclist

    @modus operandi #2

    Time to die.

  • latveriandiplomat

    Apparently, No Child Left Behind was not the first time Ted Kennedy got played for a sucker by conservatives in the name of “bipartisan reform”.